05A20018
09-16-2002
Jose M. Bejar, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Jose M. Bejar v. Department of Veterans Affairs
05A20018
September 16, 2002
.
Jose M. Bejar,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A20018
Appeal No. 01A13912
Agency No. 200M31
DENIAL OF REQUEST FOR RECONSIDERATION
Jose M. Bejar (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Jose M. Bejar v. Department of Veterans Affairs, EEOC Appeal
No. 01A13912 (September 14, 2001). EEOC Regulations provide that the
Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates that: (1) the appellate
decision involved a clearly erroneous interpretation of material fact
or law; or (2) the appellate decision will have a substantial impact on
the policies, practices, or operations of the agency. See 29 C.F.R. �
1614.405(b).
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b).
Complainant alleged that he was discriminated against on the bases of race
(Hispanic), national origin (Ecuador), and in retaliation for prior EEO
activity when his request for reassignment to another office was denied.
The previous decision affirmed a final agency decision finding of no
discrimination. In his request for reconsideration, complainant argues
that the agency incorrectly concluded that the agency's action did not
constitute harassment. According to complainant
. . . the classification of an incident as an act of harassment is [in]
the eyes of the complainant. Somebody else may have a different opinion
about classifying that specific incident as an act of harassment, however,
the opinion of the complainant stands.
Complainant's position is incorrect as a matter of law. It is not for
him unilaterally to decide whether he has been harassed. The question is
not simply whether complainant subjectively believed that he was being
harassed when he was denied the office of his choice. In addition
it must be determined whether a reasonable person in complainant's
circumstances would have felt that way. See Enforcement Guidance on
Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
We see no reason to reconsider the previous decision's affirmance of
the agency's resolution of that issue.
For the foregoing reasons, it is the decision of the Commission
to deny the request. The decision in EEOC Appeal No. 01A13912
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. You have the
right to file a civil action in an appropriate United States District
Court within ninety (90) calendar days from the date that you receive this
decision. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 16, 2002
__________________
Date